addressed in our education system is the consistent and acknowledged pattern of under educating low-income and minority students. we call it the achievement gap. this morning are national public radio howard manning, called it academic genocide. his persistent, pervasive and significant disparity in educational achievement and attainment upon groups of students negatively impacts not only education outcomes to low income modern students, but the future of their entire lives. something has to be wrong if this impact is inflicted with a pattern of consistent pattern based on income and ethnicity. we have legal precedent to address the issue. in 1954, brown versus topeka board of education the court ruled that the ravages of segregation without moore denied that the children of the minority race of an equal educational opportunity. the subsequent places and

involving disabled children found that failing to educate them to their full potential violated their constitutional rights. certainly under the standards the very existence of an acknowledged achievement gap based on income and ethnicity must also violate the rights of the income and ethnic groups who suffer. today, we'll hear from three panels of experts. our first panel, legal and civil rights experts will look at the technical legal precedents of brown v. board of education which in december, part the state of pennsylvania and mills v. board of education of the disregarded, requiring three education of children of disability or they will discuss from various perspectives whether and how these precedents can be applied to a consistent and acknowledged pattern of under educating low-income and minority students. they will discuss whether or not the victims of the achievement gap have been denied of equal educational opportunity in

violation of the united states constitution. panel two will discuss the current status of educational achievement by socioeconomic, racial and ethnic status to establish if there is indeed an achievement gap and discuss the short and long-term disadvantage is inflicted on low-income and minority students who are victims of the achievement gap. finally, the third panel will discuss whether it is in fact possible to eliminate the achievement gap and how we can determine when the achievement gap has been eliminated. this panel with an outline the best cost-effective alternatives that -- alternatives to the present governmental policies that will result in the illumination or at least significant reduction of the achievement gap. finally, the panel will discuss type of legislation we need to pass to shape the country in which all students receive a quality education and there is no longer an achievement gap based on ethnic -- ethnic --

ethnicity, race or status. now i'm going to give very brief introductions to our panelists. if i gave them their full introduction i would be introducing people for about 45 minutes to an hour. i would like to get to the substance, and their full biographies are in your package. but let me briefly introduced nancy lee jones, legislative attorney with the american law division of the congressional research service. by preparing impartial scholarly written analysis of various legal issues and by oral briefing and seminars. some of the areas that she covers conserves civil rights of individuals with disabilities. next will be ms. neas matches the input activities, especially

those policies that help children and adults with disabilities to live, learn, work and play in a community. she was on the legislative staff of senator tom harkin, senate committee on disability policies between 1987 and 1991 where she worked at all disability legislation, including the americans with disabilities act and individuals with disabilities education act. cathleen roy is an attorney and codirector of the center for law and education. the senator is a national advocacy organization representatives from low income families whose primary mission is to ensure high quality education of all students, including those with disabilities. the professor returned to legal agony in june of 2009 as a professor of law at the university of district of columbia, prior to that he served as chief counsel and senior deputy director of the lawyers committee for civil rights under law and washington, d.c.. is a former law school dean, law professor of public interest or

wechsler with a grant of over 40 years. veronica rivera is a legislative staff attorney with the mexican-american legal defense and education fund where she focused on educational policy pitches a former schoolteacher and work in the state of texas office of the governor, criminal justice division. bob carr is executive director of the national bar association, goes and largest national network of attorneys and judges of color. early in his gritty practice law with an atlanta-based firm and served in government and staff physician in a state house of representatives and u.s. department of labor. cynthia robins currently serves as a consultant to time banks u.s.a. and a long with doctor edgar khan, his codirector, cofounder of racial justice initiatives. and initiative was launched earlier this year to address the consequences of structural racism and social injury

resulting from violation of the constitution and federal law and public systems, including juvenile justice, child welfare, and public education. she has experience as a civil rights and criminal defense attorney as an adjunct to professor of juvenile law. and we will be joined hopefully during the program by tonya clay house is the director of the newly is established policy director of bush bush to be on funeral rites of rites of the law. she's a former policy public policy director of the people for the american way, and former legislative counsel for congresswoman sheila jackson lee and senator arbor boxer. so we will begin with nancy jones. >> thank you, mr. scott. i am nancy jones that i am an attorney with the american law division of crs. and crs does provide objective and nonpartisan information to the congress. i'm going to be speaking today about the legal and historic background of the individuals with disabilities education act,

i.d.e.a. i.d.e.a. is a federal civil rights and grant statute that provides federal funds to states for the education of children with disabilities. in order to receive these funds, states must ensure that all children with disabilities have available to them a free appropriate public education. and ensure that the rights of children disabilities and their parents are protected. more specifically, the law also contains provisions for child find and for individualized education program, and has detailed due process procedures. as a supreme court said in smith versus robinson in 1984, i.d.e.a. is a conference of schemes set up by congress to aid the state into play with their constitutional obligations to provide public education for children with disabilities. although congress had made some provision for the education of

children does not in the education and secretary under secondary act in 1966, the real roots are in a 1975 law, p.l. 94142, the education for all handicapped children act. justly don't get confused, the name of this law was changed during a later we authorization to the individuals with disabilities education act. so we are talking about the same piece of legislation, just as it's been amended to. let's go back to him original law. there are several reasons why congress decide to pass 94142. the main ones were increased awareness of the educational needs of children to disabilities and the long-term benefits that provide these children within education. in addition, several lower court judicial decisions establish a right to education for children disabilities. and states argued that their lack of financial resources prevented the implementation of these decisions. financial problems are not new. statistics from the then

department of health education and welfare indicated that of the more than 8 million children with disabilities in 1975, only 3.9 million were receiving an appropriate education. 1,475,000,000 children with disabilities were receiving no educational services. and 2.5 million children with disabilities were receiving and any appropriate education. the type of education deemed inappropriate was often not a minor difference. judy human intel 20 for the enactment of the ada noted her expense with education and 1950s and '60s. ms. human had polio in 1949 when she was 18 months old until she was nine, the new york city school systems furnished two and half hours of schooling a week in her home. when she was nine, she got to go to a real school where she and other children with this those were placed in a special help conversation class in the far corner of the basement, away

from children who have not had this those. they were taught to her hours and a different curriculum than children without disabilities. ms. human state that message was very clear. you are not welcome. we have very clear expectations for you to achieve as an adult. she succeeded despite this and went on to a successful career, including time as assistant secretary special-education rehabilitation services at the department of education. but for many children subjected to an inadequate education, the long range implications were advised of content as it often and institutions that the senate report on p.l. 94142 indicated that providing educational services will ensure against persons being needlessly forced into institutional settings. and that nation long embrace the policy that the right to a free appropriate public education is basic to and buyers to secure the future and prosperity of the people. this awareness of the needs and abilities of children with disabilities was also reflected

in judicial decisions that found constitutional requirements to the education children with disabilities are a number of similar judicial decisions. the two main cases where park versus the state of pennsylvania and mills versus board of education of the district of columbia, both from 1972. park was a class action by children with intellectual disabilities who sued the state alleging that they were denied a right to public education. and although the court did not address the constitutional issues, the court noted it was satisfied that the players have established constitutional claim. after park, another similar case, mills versus board of education of the district of columbia was brought on behalf of seven school-aged children who had been excluded from the d.c. public schools. their children had no alternative education placement and no due process hearings before they were excluded. and the court in mills noted the d.c. statute and the regulation and the language from brown versus board of education or the supreme court had found that education was one of the most

important functions of state and localities, and that such an education opportunity where the state has undertaken to provide it is a right which must be made available on equal terms. the mills court emphasized this language holding the nile of education to these children with disabilities violated d.c. statute and regulation as well as constitutional due process. so congress responded to the increased awareness of the educational needs of children with disabilities, the long-term benefits that are biting each other within education, and these judicial decisions establishing a right to education for children with disability with the indictment of p.l. 94142 and 1935. since 1975, i.d.e.a. has been reauthorized with times and has been the subject of thousands of judicial decisions. many of which do address the concept of a three free appropriate education. i.d.e.a. remains a cornerstone of the rights of people with disability but it should be emphasized that the judicial decisions, especially those

regarding a free appropriate education very widely. thank you. >> thank you very much. ms. neas? >> thank you mr. scott. my remarks today are going to address whether low income and minority owned with disabilities have been deprived of an equal educational opportunity. and i believe the answer is a simple yes. i want to give a little additional background from what nancy said. dakar to more than six months and with disabilities who receive support from i.d.e.a. approximate half of them are white, 20% are black and 20% are hispanic. and i.d.e.a. is not means tested haircolor, we do know that 24 percent of students with disabilities live in poverty compared to 16 percent of the general education population. in order to be eligible for special education services, a student must have both a disability and needs special education. it's also important to note that

85 percent of special education students do not have a disability that prohibits them from achieving great level academic standards. at this time there are about 16 categories of disabilities within i.d.e.a. one of the things that article to look at is the ultimate outcomes of our secondary education system, and that's a high school diploma. for black and hispanic students, 32% drop out compared to 20 percent of their white peers. 42 percent of the black student and 44 percent of hispanic students graduate with a standard diploma compared to 64 percent of their white peers. 23 percent for black students, 21% graduate with a certificate of attendance. we really want to see those numbers of graduate with a standard diploma get significantly higher than what they are now. as nancy said, prior to i.d.e.a.

in 1975, some states have laws that specifically prohibited students with disability of attending schools. where i live in montgomery county maryland it was illegal to go if you had an intellectual disability on it was illegal for you to go to high school. in 1975, i.d.e.a. was enacted in large part because parents with children with disabilities predominately those with intellectual disabilities believe that the child, their job with a disability like all their other children and had value like all their other children and deserve a right to go to school. i.d.e.a. is granted i believe in the 14th amendment equal protection clause come and so because every state's constitution is salish is a public education system, the theory is if the state educate one child and it needs to educate every child. and i.d.e.a. sets out the procedures by which these is supposed to be killed in his or her individualized needs. the law also is outages a state

grant program. and initially, it was thought that congress was to provide 40 percent of the excess costs associated with educating students with disabilities. overtime, i.d.e.a. has been revised, and a couple of things are important to this. first is that in 1997, congress added the requirement that students with disabilities have access to general curriculum. prior to that time, it was that students really had the right to be in school, and congress clarified in 1997 and they have a right to be educated to have access to the same curriculum as their nondisabled peers. second, that congress require students to be included in state and districtwide assessments. was appropriate accommodations when necessary. so our national policy was that students should do something more than simply attend school. they should be expected to make

academic progress that is similar to the nondisabled peers. so why do we have the outcomes that we have? i think there are for clear reasons. one, despite these specific requirements and clear laws, the burden of securing educational opportunities for children with disabilities falls on their parents. low income families are often balancing a series of challenges and do not have the capacity to become expert on specific educational and related services support that their child needs. second, in some cultures, parents are not comfortable challenging the authority of the school system. and even when they know that even when they know the set of support has been provided to the chart is inadequate. third, not all children have access to general curriculum. and students with disabilities will continue to be what we call dictums of the tyranny of low expectatiexpectations and till we can demonstrate that they have access to general curriculum.

and then finally, some in the public education system have viewed the level or the lack thereof with federal funds as a reason or an excuse for changing students with disabilities that i'm glad to be here, and thank you for the opportunity, mr. scott. >> thank you. >> good afternoon. i'm catholic, attorney and codirector of the senate. this afternoon i'm going to address what is a legal theory behind requiring special education students to be educated to higher standards. i'm also going to suggest that there are ways to from these rights strategies to all students. today there's no doubt as to what disabilities have cleared a stab at rights to educate the highest imagebase and equal protection due process clause in the 14th amendment, i.d.e.a. section 504, of 1973 the civil rights statute that bars

discrimination. moreover students with disabilities include those who are from low income family, and disproportionate receiving special education as well as tunes from the same groups who do not have disabilities that impede learning but are struggling to learn-it also have a right to quality education as amended by no child left behind. moreover, as i'm going to briefly describe key changes are necessary to help close the significant achievement gap for both students with disabilities and students with color without disabilities. for example, despite did with this bill is having strong rise, implementation and enforcement of i.d.e.a. remains uneven weather as a result of federal and state agencies and this is on compliance or performance, or the inability of parents, low income parents are

disproportionally parents of color. those multiple bold to being in low-level classes, to exercise their right to complain under i.d.e.a., to bear the burden of proof necessary to challenge the quality of their children's programs, to ask expert witnesses or the ability to maintain counsel. targeted oversight and enforcement of rights to hike on education and title i or all students including low income, racial minorities, without disability as well as students with disabilities are hardly acknowledge, nevermind enforced and difficult of access for parents as well as advocates. you've heard how i.d.e.a., p.l. 94142, incorporate the major principles of the right to education cases in establishing the grand and a program under both the spending clause in the 14th amendment. tragedy contained in unequivocal directors to state and local education agencies to provide with a full free education which is defined by statute as

consistent with the state education agency standard set for all children. based on this definition the content and gold of a child's special education or specialized instruction cannot be designed in a vacuum but rather they must be developed in reference to meaning and content of education for all students in the state and school district in the school. regulations promulgated by the department of education under trained to exquisitely defined state of education, especially design and structure to ensure access to the java the general curriculum so the child can meet the education stand with imagistic and other public public agency that apply to all students. weather reflecting increased knowledge understanding of how students need to learn or perhaps a commitment to principle of equal protection equity and and excellence for all to go and them and specifically to title i of the secondary act of 1994 as was in 2001 which apply to all

students, raise expectations for improved educational achievement for students with disabilities. and 97 amendment especially required all student is believed to have access to the general curriculum established to all of the students. each program must describe how the child's disability affects participation with the general curriculum. and to be reviewed periodically and revise as necessary to enable the child to learn the general curriculum established for all. either change his i.d.e.a. express address issues of concern for economic disadvantaged student, english language learners who are still disproportionally and behavioral disabilities being in need of special education. changes in the 97 at 2004 authorized it to provide specialized instruction to children for tonight without having to classify them with a

specific disability in stead using the general term. change also allows school districts use up to 50 percent of the i.d.e.a. funds to focus on children who are not yet expected difficulty, struggling to learn but had not been identified as having a disability. the 2006 regulation is also encouraging response and methods. properly implemented may also be a critical tool for ensuring the struggling general education students receive more effective instruction and intervention and that racial and lane was my ins are not misclassified as needing special education services. i want to talk about title i reauthorization of i.d.e.a., 2004 aligned ida with no child left behind making sure that since the disabilities of the subgroup were included. the explicit line which in i.d.e.a. is quite clear

requiring adoption and use of the same standards for all students without exception. what's important is that since 1984, title i has actually required schools to provide students with accelerated image curriculum aligned in challenging state standards. status for all students, not a slow or watered and greet him. teachers must be highly qualified, use effective instructional strategies. struggling students need to be provided with timely interventions whenever they're having difficulty mastering any of the standards. yet despite these requirements, mandates provision of high quality education for all students the law is being implemented only focuses on intervention of underperforming schools based on test performance. the sole focus of title i reauthorize an amendment has been on a template for results and test scores. with public attention fixed on his gold little or no consideration has been given to the quality component which

clearly can impact and affect the achievement gap. these key provisions and title i properly implemented should enable all students to overcome barriers to learning. however, not only of these provisions virtually invisible under the radar, but unlike i.d.e.a. where parents have a right to bring a complaint of any matter concerning identification of evaluation program and placement, there's no private private cause of action under title i. to address the core evaluation components. finally, the last section i would talk about whidbey, and i will leave this for another panel to do this, we'll be looking at the civil rights statute because i hit my time limit here. i think i'm well over a. the key is we need to be looking escort for in the context of civil rights statute. the civil rights statute title vi in section 504 of the rehabilitation act looking at these gadgets and examining the

impact effects, the effects of standard under title vi, 504, is a way to go back and look at what is in fact happening, whether those policies and practices looking at the data, where the disparities exist, focusing on policies and practices and looking to see whether or not that policy and practice can in fact educationally necessary and be justified. thanks. >> thankjf you. >> thank you very much. i interpreted -- i interpreted your question today to ask whether i thought there were old viable legal here to challenge the legal gap on behalf of those who are underperforming in school. as you've already heard, there have been approximately three

jurisdictional grounds seeking educational equity. they are in short, the constitutional equal protection grounds that was the bedrock of brown versus board of education in terms of integration and desegregation. and certainly, some of those remedies that flowed out of that could relate to the modern-day achievement gap, but not directly. and i will not repeat, some of the analysis of the previous colleagues here on the day, in terms of the use of the adea, and also possibly be equal educational opportunity act which came up or recently in supreme court case of arizona. and horn. and then, thirdly, there have

been steep constitutional right to education suit that indirectly, at least, touch upon the issue of the achievement gap. i would like to focus my remarks on one in particular, and in addition to the three presidents that you stated in the question for the first panel, namely the district of columbia federal suit, and brown versus board of education. but i would like to add another reference to it and that is an article by my colleague, jim lehman, from columbia law school. and his colleague, entitled federal no child left behind act and the post-desegregation civil rights agenda. and that is cited at 81 north carolina law review, 1703. within the framework of the

legal theory that might address the achievement gap, the constitution itself, especially school integration today, probably wouldn't cover it under various strenuous tests about intent. and under restrictions on remedies, especially after the parents involved, case involving louisville and seattle in 2007. the state school equal financing case that have been brought, indirectly addresses it such as the avid versus burke case in new jersey, and the horton versus method case in connecticut. yet, we found that equal financing doesn't merely address the structural inequality of based upon high poverty concentration in low achievement. there's a new new way of cases in the past 18 years known as

the adequacy and education cases. and the legal in that category is certainly the campaign for fiscal equity from new york city. but again, can at least indirectly touch upon resources education program. however, i interpret your question asked, could we really bring a success suit based upon the disparity, the disparities between minority and nonminority, and between poor and nonpoor, which the core of the achievement gap. and which goes to the no child left behind act. my colleagues argue that the new accountability standards established under the no child left behind act, now provides the law and civil rights litigator with the measurable standard exactly what is a quality education, which courts

have refrained from doing because they said courts are not in the business of education, as well as a measure to determine what was the violation from a non-violation. . . , congressman scott, that you could help address the question of the achievement gap in the upcoming reorganization of the esea by creating a private right of action in the no child left behind act. without a private right of action, there's no real way that parents and civil rights advocates could challenge this disparity that's measured under the act. certainly i see assistant secretary of education for the office of civil rights there, and certainly her office and the department of education have some standing in that. but i conclude by saying that if you want the civil rights advoates i conclude by saying that if you want the civil rights advocates to help address this

question of the achievement gap and looking for a cause of action that is viable in court and looking for a possible remedy i would say we have a great start now in the know child left behind at in terms of new accountability but we need a key to unlock the door to go to court. that keep would-be private right of action. as the prius speaker said if it is not too much more to ask we also look for a possible amendment of title vi to create a disparate impact. that disparity should be the -- violation. it would rely upon law. it shift the burden to the legal authorities to show there are no better needs to buy a

less discriminatory education. >> thank you. though latin education experience has been marked by persistent segregation and racial isolation. the legal segregation began half a century ago. prior to brown vs. board ofisol. the legal segregation began half a century ago. prior to brown vs. board of education there was another case which desegregated schools in california and closed latin schools. it challenged segregation and

was an important precedent for the brown decision. the court held separate but equal schools were inadequate and a paramount requisite in the american system of public education is social equality. it must be open to all children by unified school association regardless of lineage. brown vs. the board of education, held in 1984, in the field of public education, the doctrine of separate but equal has no place. however, the specific recognition of the doctor applied to latin school segregation did not reach the physical -- federal court until three decades after the mendez and brown decision with independent school district in 1970 and cheese verses school district keys verses school district no. one in 1973.

this recognize the fourteenth amendment. unfortunately even after those rulings latino student civil-rights have not sufficiently been enforced by federal civil rights agencies and latino students attend lower quality schools. this has been limited by federal courts since the 1970s. latino students were directly affected by the san antonio school district versus rodriguez decision in 1973 which held there is no federal right to equal resources for students in impoverished public school districts and the milliken purses bradley decision in 1974 where theversus bradley decisio where the supreme court created

a barrier. since 90% of latinos attend schools in metropolitan areas these had legal avenues for latinos desegregation. integration of latino students with white students has been declining on a national level ever since the data was first collected in 1968. during the 1980s the level of latino students segregation past that of african-american students and it remains that way today. by the 2005/2006 school year, two of five latino students attended an intensely racially segregated school. moreover, latino english-language students attend schools where 60% of the students are latino. all of these statistics are troubling in light of the fact that latino student public school enrollment has quadrupled

in size from 5% in 1968 to 20% in 2005. on june 28, 2007, the united states supreme court issued an opinion and parents involved in community schools in meredith versus jefferson county board of education. at issue in these cases was the authority of local school districts to consider the release of individual students in taking voluntary actions to reduce racial and ethnic segregation and isolation in keys--12 public schools. latino students-the supreme court ruling limits voluntary desegregation plans and could increase the already high levels of segregation of latino students.

chief justice john roberts acknowledged remedying the effects of past intentional discrimination is of compelling interest. roberts held that the compelling interest of remedying past intentional segregation was not applicable to the school district plan in this case because the school systems were not under court ordered desegregation plans when they carried out their integration plan. the supreme court ruling altered the constitutional law governing voluntary school desegregation. it is important to note that the ruling does not apply and has no affect on court ordered school desegregation plans. for many latinos the promise of an effective, quality public education remains elusive. despite mendez and brown latino students have never experienced an overall decline in racial

isolation. in fact, drastically limited opportunities. for latino school children decreasing racial isolation holds the promise of improved academic opportunities as well as greater political and civic engagements. all significant goals as the latino community grows into its role as the largest community group in the nation's diverse landscape. children require access to the best schools when residential racial isolation is increasing and the importance of strong college preparation is becoming ever more essential to economic success in the united states. latino students must learn from the experience has gathered in a divorce setting as others must

learn about latinos. at a time when there are too few opportunities for youth to prepare for success, our communities must preserve options for the voluntary integration of our public schools. thank you. >> thank you. mr. carr? >> thank you. good afternoon. on behalf of the national bar association we are delighted to be here to address this important, pressing issue. as i understand it, question before us is whether the very existence of an achievement gap is a defect tho facto violation united states of america.

we say undeniably yes. we are 55 years from the decision of the supreme court in brown vs. board of education. it pains me greatly as a product of that decision that we are still discussing that issue. it seems to me the problem stems from language that was inserted in that decision at the very end. in terms of the remedy, with all deliberate speed. those four words have plagued us from the beginning and continue to plague us with all deliberate speed. i would assert today we have not achieved the mandates of brown vs. the board of education. let me talk about my own life. i grew up in the segregated south. although i may not look it i was born in 1950, four years before

that decision. i am painfully aware of what it is like to grow up in a segregated environment. i know what it is like. i grew up in the south, tallahassee, florida. it was not until 1964, ten years after that decision, that we began to address the question of segregation. here we are again, 55 years later, still wrestling with this issue. the fact we have an achievement gap seems to me is evidence of the fact that we have not achieved the promise of brown, more have we complied with the mandates of the brown vs. board of education decision. the national bar association has

long been at the forefront of the civil-rights movement. charles hamilton houston, thurgood marshall, our early parent years in this area. 55 years after their historic work we continue to struggle with the issue of an achievement gap. we must applaud congressman scott for addressing this issue because all children, all children, regardless of ethnicity, race, ability, are entitled first and foremost to equal respect. to equal opportunity. to equal treatment. to = status. and to equal place. as long as we have an achievement gap, that simply will not and cannot happen. we must address that issue.

it is a moral right. it is a civil right. it is a parental right. is an ethical right. to day as my distinguished colleagues on the panel have illustrated, it is a legal right. it must be addressed. thank you very much for allowing us to be here. we end where we start. the very existence of an achievement gap demonstrates low-income and minority children have been deprived of equal educational opportunities in violation of the u.s. constitution and our answer is undeniable yes. thank you very much. >> thank you. before we get to cynthia roberts i want to recognize donna christiansen from the virgin

islands and mike honda, the chair of the kpac, caucasian pacific american caucus from california. thank you. cynthia? >> thank you, congressman scott, for including me in the panel of luminaries tackling the seemingly intractable achievement gap. my name is cynthia robbins. as a lawyer and activists committed to justice and education along with distinguished prof. of law dr. edgar cahn, i have added the justice initiative. if you remember nothing else of what i have to say today please remember that i came here to say yes we can. that slogan embraced by the campaign of president and nobel laureate barack obama:bayou s w

founder cesar chavez, captures the essence of the legalegacy o promise. there are many examples of educators and families saying yes we can level the playing field. one example shows the movements core values of reciprocity and co-production at work. by offering our gifts and talents and receiving the fruits of our neighbors's labor we produce the type of community we want and need. the example i am sharing, ordinary fifth and sixth graders in 25 felling elementary schools tutored first and second graders and achieved remarkable success. at its heart is the fact that one of the best ways to foment understanding is to explain that

lesson to someone else. failing fifth and sixth graders became dedicated tutors and role models. everyone learned, everybody won and every child became the smart kid. test scores and educational achievement improved driving many of those schools off the failing school twist. this is documented in the book no more throwaway people which i would like to have introduced to the record. we know what works and i am here to talk about how to compel public education officials to use that knowledge. for decades ever since the supreme court decided washington versus davis -- responsible government authority intended

the injury and discrimination that resulted from their policy and practices. it is hard enough to know what i intend and difficult to assert what another person intends but virtually impossible to prove the intent underlying a particularly injury is policy or practice of government entities such as a public school system or juvenile correctional authority. in the next issue of the law journal you will see an article i co-authored with dr. con which i know you have won and analyzed, an offer they can't refuse. racial disparity and juvenile justice and deliberate indifference meat alternatives that work. i am not certain whether they made it into the package but i have a copy for inclusion in the record as well. particle sets forth a new strategy compelling government officials to do the right thing, to use the knowledge about what works instead of relying on

failing policies and wasted resources. our strategy to overcome this onerous burden of proving the government intended the injury relies on a later article from 1989 which in firs intent on the government authorities if they are shown tofers intent on the government authorities if they are shown to choose the injury is -- deliberate injustice in this course of action in the face of other alternatives. moreover ironically, these alternatives tend to be less expensive too. the article presents this theory in the context of juvenile justice and disproportionate rate of confinement, have been asked to discuss its application in the context of persistent

disparity in education. ironically, you know the determination about how many prisons cells to construct is reliant on a determination of third grade reading levels. in the education context our strategy would look like this. instead of looking backward as litigators' do we say look forward. have a public notice forum. bring the evidence and people who can offer evidence about both the disparity as well as the failed educational practice as well as opportunities and alternatives that have been successful like fifth and sixth graders who can testify about their experience in chicago. our optimistic hope that juxtaposeds the injury is policies against alternatives that work would persuade

officials to do the right thing. in the absence of them being persuaded we would say take the transcript from that public notice forum and use it as exhibit a in a piece of civil-rights litigation to challenge the achievement gap. in closing i have seen it as the director of an alternative school in d.c. that was originally founded by attorney general eric holder. i saw that setting high expectations drives education turnaround by hard work, instructional strategy that reflects and embraces different learning styles. they participate in counseling, college tours and ap classes. young people who everyone had

written off or going to college and exceeding 80%. last weekend pr reported a study from the university center for cognitive green image mr. chafee during an element to improve elementary reading demonstrating a breakthrough in understanding brain function. they looked at the brains of young people who were not achieving and lagging in their reading and those compared to a control group. after 100 hours remediation and incentives intervention they focused on things like phonics and syntax and other reading levels. a follow-up birdie scan showed this intensive reading intervention changed the brains of the lagging learners and more importantly the lagging readers had caught up. we can bridge the achievement gap. i will defer on special education and joined with a request for the establishment of a private right of action and

the amendment of title vi. we have the knowledge and resources and reauthorization to provide the opportunity to invoke a new strategy to compel officials to use what we know in order to educate our children and prepare them to xl in the twenty-first century information age. yes we can. >> thank you very much. we have been joined by tonya. >> thank you for allowing me to participate in this very wonderful panel this afternoon. i wish i was able to stay the entire time. i am in the middle of a briefing that i have special permission to leave because this is extremely important. thank you for allowing me to be here. i am here representing the lawyers committee for civil rights under the law.

our mission is to bridge -- to protect the civil rights of all americans particularly racial minorities and protect against racial disparities that may exist among minorities, particularly african-americans. what i will say today may sound like a little bit of a naysayer but i want to express the reality we are facing as we deal with the issues confronting us within the education context within litigation. before i get to that, let me say prof. brittain has stolen my thunder which is okay because he came before me. i am quite thankful that he mentioned one of the remedies we strongly advocate, the addition of a private right of action as well as amendment to title vi.

because we don't have that, i am here to say we have a challenge. as i was talking among my colleagues we have a variety of projects within the lawyers committee. i am the policy director representing all of them. we are thinking does it exist? the problem is because we don't have an affirmative right to an education in the federal constitution, we don't have that ability to bring the types of lawsuits i would like. i have to say it doesn't exist at the moment but that doesn't mean we don't want it to exist and we don't want to figure out ways to remedy this situation. let me tell you what we can do in the meantime which may seem like some incremental approaches that they are somewhat

successful in trying to achieve in order to close the achievement gaps that exist so far. i am not going to speak to ida panelists. i am familiar with you all on this need down the table. i will leave that to the experts. we have heard about brown vs. board of education. we know what that has provided for all of us. as a result of the seattle cases, we do have a challenge because it has limited the ability for us to find some remedy towards segregation that has been occurring. i want to address the louisville

cases, the jefferson county situation as well as the current settlement agreement we have reached in north carolina that provides us some type of remedy. louisville has a special place in my heart because i grew up there. i am familiar with the segregation that has taken place between the east end and west an end. you are quite aware that you know where the black students came from. growing up in the east end i know where the black students came from. they are on the basketball team with me and the track team. that is where we are. there is a reason that you needed that within louisville. unfortunately, because the supreme court case, we are in a situation where they had to revamp that. they have developed some

remedies in which they are utilizing magnet programs which we find somewhat successful. they are being challenged. not the bad that programs but there are a challenges taking place right now because there is a claim by some of those non-white students who are being discriminated against because they're not being afforded the same opportunities as african-americans based upon the current scheme that is in place in jefferson county. there is some success that we can glean from what is occurring because there is positive momentum, voluntary action within jefferson county in order to remedy the segregation that currently exists within that county. additionally, let me mention within north carolina we have

recently come to a settlement agreement to mediation within north carolina, everett versus board of education which the parent organization has participated in mediation with the county in order -- with regards to the reassignment plan that has taken place. we were able to avoid unitary status, but we will look at that in another few years. that is something -- we have provided some opportunity to the engagement within the community to achieve some type of remedy because of the segregation occurring within that county. those are a few alternative remedies we can deal with as we are trying to achieve some type

of affirmative right within the federal constitution. we know about things like smaller classes that also work. until we have that affirmative right within the federal constitution there's not a lot we can do as litigators' but we are attempting to do as much as we can up to that point and i want to say we will be extremely ecstatic and happy to work with anyone in order to come to a feasible argument or theory we can bring into the court system but as of right now i cannot come here to say to you that that actually exists. that being said, i look forward to hearing at least -- until i have to leave -- what opportunities do exist. i thank you again for allowing us to be here today. >> please give all of our

panelists a round of applause for this excellent presentation. [applause] >> a few minutes before the next panel starts for question. i will ask tanya clay about the right of action. it will be more convenient if it were specifically articulated. brown didn't have a private right of action. if ms. robbins's theory where you have a racially identified achievement gap in afflicting damage on a clearly ethnically identified group it would constitute a constitutional violation. if there is a violation how can you have a violation without a remedy? >> as i understand your question, you ask why do you need a private right of action to bring a constitutional claim? the answer is you don't.

the question, though, if you are going to try to force a civil right based upon a federal statute that seems to guarantee some key quality, this decision by the supreme court called sandoval, said you have to have a congressional declaration that the beneficiaries of this act are entitled to enforce the provisions. otherwise, only basically, the federal government agency can -- in charge of enforcing the act can do it. that is why we need a private right of action if we are going to face a challenge to the achievement gap based upon some kind of statutory framework for

educational equality. >> what about the brown standard of equal opportunity from a constitutional perspective? >> excellent question. if we were to look at the achievement gap we would see that it is overwhelmingly nonwhite. it involves segments of our public schools that are almost completely segregated. our hands are tied to day in and challenging the very segregation that was challenged in brown because brown was based on an intent to segregate students yet today there is no de jure segregation. there is only the facto segregation in connecticut where i was involved in the shift, the court under the state constitution recognize thatde a

facto segregation is actionable. we cannot challenge the hyper -- challenges the equal protection standard because it was not deliberately created. >> what ms. robins suggested is if you give notice of alternatives that are not racially discriminatory and alternative ways of doing education that do not result in a racially identifiable achievement gap, that would show intent. >> that is why i referred to my colleague's article, that we can't bring an education malpractice cases dealing with the achievement gap the way we can bring medical or legal malpractice because the courts say we don't know what is the standard of minimum education and we don't know how you measure it and in short i would say the notes are left behind

today and all the formulation that goes into it particularly by state as far as the minimum standard of education to meet the annual yearly progress, we do have a standard and the achievement gap is the measure of that today to lead to a legal claim that would constitute a violation of a child's equal right to an education. >> do you have questions? >> i will have one now. i am an attorney, i am a schoolteacher. the question i have in terms of the way schools are created, usually created by reflecting the zoning patterns created by a city or county and when you look at redevelopment, it clearly shows you can't eliminate a community much quicker and your

schools change. is there a way we can engage local government in this battle for having a balanced school and balanced community through looking at land use decisions? >> could i speak to that briefly? thank you for raising that issue. that is something we're looking at within our housing project because we are looking at the connections between segregated patterns of segregation that are created within not just the recent louisville or seattle or well-known cases but across the board. we have a housing -- fair housing project which is dealing

with this issue as well as a community development project which deals with the economic equality within different communities. looking at how to overlap with our education litigation which is taking place, we see that education, they are all interconnected. there is potential to work with government and entities to challenge the patterns by which housing is distributed. that also means we have to deal with on the federal level the distribution of grants. i am looking around to see if i see the people i see but i don't but there are particularly in community development grant programs, some other funding

mechanisms particularly within section 8. those grants, we have to deal with that because there are loopholes in which the governments have been able to get around insuring the patterns in the community. we would be happy to talk to you about that more. >> this goes to your prior question and the last comment. one of the exciting things about the act is it takes the conversation away from analysis of racial conflict -- toward an

analysis of academic achievement. that is where we need the focus to remain. on academic achievement and what barriers there are and what strategies there are on being encouraged and funded by the act in order to advance educational achievement and narrow the gap. the contention so often is we don't know how to do it. there is a very hard problem. the point is we have seen exemplars of closing the gap in short order and a limited time. that is the first thing. while it would be potentially possible, we might bring a piece of litigation, would make it clear. the difference between an interpreted opportunity and a bright line standard. that is the basis for my joining

and the urging of a private right of action to the statute. >> we have two or three minutes for questions if someone has a pressing question from the audience. >> i wanted to thank you for holding this summit and the panelists on this panel and those that follow for being here. my district is a little different because we are almost all black and hispanic in my district so we don't have public schools that are mostly white or black or hispanic. the achievement gap exists. the decision is critical to me. it is critical to our pathways' out of poverty agenda and it is critical to eliminating health disparities and we will never do that unless we can improve that pipeline. i am not a lawyer and never been

an educator. >> private right of action. >> i would be very supportive. we still have the problem of discrimination and health-care. thank you again for having this and thank you, everybody, for being here. >> i just want to make clear to clarify my perspective that when we are talking about the achievement gap we need to emphasize we are not talking about test scores. it is much more than that. it is about student achievement, thinking skills, high order thinking skills so they have of opportunity to be successful adults. highly qualified teachers with the support they need and we are not looking at test scores and bring in a private course of action because someone didn't succeed on a standardized

assessment. >> our last panel will look at the question of how you know when achievement gap -- what the panel's talk about. how we know when we have gotten the achievement gap closed. >> i am the president of the board of education in my home state. dedicated to the achievement gap of schoolteachers. a number of school districts around the nation in the course of my career. so much is said that i don't know where to start but i want to indicate this much. in my experience in working -- thoroughly integrated school environment where you have equal distribution of resources, the

same community resources, we still see this academic achievement gap even given equity. i am not sure there is a legal remedy completely to address this achievement gap. as an educator throughout my career i was held accountable for problems. we accept accountability. what is important to have been missing over the course of our career was someone being accountable. the next national association told us there is a significant achievement gap before the child even gets standardized. what i would like to suggest is we might as a group if we are concerned about this issue, what i believe president obama has indicated, how can we effectively get students ready? how can we give parents the effective support that they need

so that by the time we walked into the school house, they do what a kindergarten should be able to do. that is against the achievement gap because if you have a minority child who walks into the door two years behind, we have been engaged in a system -- consistently by the time they graduate from high school there are four years behind. >> some of those questions, this panel spoke specifically to the legal basis. we have others to speak to that question specifically. >> can we legislate parental behavior? >> we can provide services to parents. if we are not providing services

to parents which creates or doesn't give us the opportunity to eliminate the achievement gap that is something we need to look into. obviously the achievement gap, we will hear from subsequent panels. one of the things that has been important is what we call dis g disaggregated data. if everyone is learning, students are learning, you have noticed that they are not teaching the minority of low income students the theory behind no child left behind the we are not going to leave those children behind. you don't camouflage what is going on. they are teaching techniques and methodologies that will teach all students and some other methodologies that will predictably leave certain people behind. we want to make sure we are not

creating an achievement gap even though the technical tangible factors may be equal. >> can i mention -- thank you for mentioning this. something i didn't indicate is i agree that there are not legal remedies to trying to address this. one of the things we have implemented in the past is a parental empowerment program which essentially goes into various school districts in order to empower the parents to provide them the information necessary to ensure they are on top of their child's education. it is not going into the courts but it is providing the necessary education. i can talk with you more about that afterwards but that is something we are engaging in as attorneys because we know how things eventually are going to play out within the court's. we are trying to get to them

before hand. that gets to the issue you are talking about. >> another brief question. i want to thank the panelists for their excellent presentations. we have a lot of work to do. the next two panels will give us some more direction. thank you very much. >> on c-span2 today it discussion of how to cut federal deficit spending. later, live coverage of the campaign management institute at american university with absentee and early voting. tonight, a special weeknight edition of booktv with the authors of several books on the critics's best books of 2009 list.

>> all this week get a rare glimpse into america's highest court threw unprecedented on the record conversations with ten supreme court justices. >> once we hear the oral argument we go to the conference room and we sit around the table and we talk about it. no one else is in the room and we vote. >> tonight our interviews with associate justices stephen brier and clarence thomas. interviews with supreme court justices, 8:00 p.m. on c-span. and get a copy of our documentary on the supreme court on dvd. is part of america's icon collection. includes programs on the white house and capitol. one of many items available on c-span.org/store. >> less than a month to enter the 2010 student can contest. $50,000.

>> the miller center of public affairs at the university of virginia recently hosted a concerts' -- conference on deficit spending. this panel was politics behind fiscal reform. this is 1 hour and 40 minutes. >> welcome back. the reminder to turn off the electronic devices. we have taken care of the electronic device that was going off in the parking lot. if everyone could do the same we

will be in good shape. we have come pretty far and have more to go given the dimensions of the problems associated with debt and deficits. our last panel before the keynote explore the possibility of policy reform and our panel is well equipped to consider this possibility as some of them have spent significant part of their lives in the policy trenches. we have mr. evans, professor of government at the college of william and mary. john elite, director of legislative affairs under president and from 1996 to 1990. william hogland who work for g cigna corp. and served as budget aide to bill frist. francis lee, associate professor of government and politics at the university of maryland college park. and senior cal to the director

of the federal director of consecration and the majority leader bill frist, to chief of staff of senator pete energy. the session is moderated by alan murray. he authored showdown it gucci gulch details of the negotiations leading to the tax reform act of 1986. i would say having used it in class that it would make a terrific holiday gift. >> that was good. made the trip all worthwhile. it is a bigger panel and the last panel. each panelist only gets five to seven minutes. we have a bit of a problem because three of the people on this panel worked in the u.s. senate which knows no time limits. i will do my best to enforce it. we will start with francis lee. >> difficult to find the cause for optimism about the quest to

bring government revenue into a sustainable balance. at a time when democrats controlled presidency and enjoy solid margin of control in both chambers of congress it is easy to underestimate the need for legislative bipartisanship. data collected over a long time testifies to the great importance of bipartisanship for successful lawmaking. congress rarely legislates with narrow margins of victory. generally most successful legislation including significant legislation on controversial matters garner's widespread bipartisan support. according to political scientist david nagy 84% of political legislation passed in the postwar period had the support of two thirds of the membership of both chambers of congress. including 95% of these laws gained that in one chamber.

the highly partisan politics of health-care reform are not the norm for successful legislation or even recent congresses. by the 111th congress was approved by two thirds margins in the house and senate including controversial matters like tobacco regulation, mortgage foreclosure, national service and children's health-insurance. intense party conflict is a threat to policy progress but it is serious for fiscal reform. there are wide ideological differences between the two parties. on the level of taxation and government expenditures. the goal of finding long-term balance between revenues -- is not itself ideological. whether government expenditures are set at a high or low level neither liberals nor conservatives favor deficits. given this, pundits and

politicians alike regularly flow proposals for some grand bargain facilitated by an independent commission that combines spending cuts and tax increasees. such an agreement ought to be possible to compare the difficulty budget politics creates extraordinary incentives to engage in posturing rather than engaging to bridge differencess. even if it is possible to strike a compromise on different policy preferences the politics--especially the party out of power to refuse a deal and exploited by a partisan advantage, growing public concern about deficits. leading republicans and democrats together, far more difficult than bringing liberals and conservatives together. even though by partisanship is necessary for lawmaking and long-term fiscal balance is a

consented goal across the political spectrum political incentives create formidable incentives across fiscal matters. deficits are a policy problem but they are also a potent political weapon. a party out of power does not direction of national policy, it also seeks to impeach the competent and effectiveness of the party in power. rather than work on a bipartisan solution to a policy problem, political incentives regularly drive a party of power to reject compromise and relentlessly prosecute the party in power for incompetence and fiscal mismanagement. few issues more effectively call political leadership in to question. deficit's fall into a category that political scientist donald stokes called violence issues. unlike position issues in which parties and candidates take a

range of positions on a continuum of alternatives usually understood and left to right, valence issues are issues in which everyone holds the same position. liberals and conservatives alike are against government corruption. everyone is against waste, fraud and abuse. everyone favors competent management efficiency. but the consensus in american politics, the desirability of such things, the party out of power will -- offer these in its case on returning to power. they are so important because so many voters have no strong ideological commitments. only slightly more than half of americans, 56% in the latest q research center identified themselves as either liberal or conservative. both parties are continuing the bidding for these voters support and valence issues our way of

doing so. bipartisan cooperation is the casualty of these parties's efforts to paint their opponents as incompetent. both parties attempt to use the lens --valence issues it is the party of power who expresses the greatest concern. congressmembers willingness to vote in favor of an increase in the public debt limit is determined by which party is in power. during the reagan years democrats consistently voted against raising the debt limit as republicans voted for it. during the clinton years congress approve raising debt limit while democrats supported it. during the george w. bush presidency democrats oppose debt limit increases and republicans supported them as needed. the party out of power uses these issues to embarrass the

pod party in power as guardians of the federal first. the budget and fiscal reform is highly partisan in congress not just when it involves ideological questions but because it is so often a vehicle for in peking the fiscal management of opponents. one recurring issue has been whether congress should rely on budget estimates for the congressional budget office or the office of management and budget. usually uses more conservative budget assumptions and omd to produce gloomier outlooks so the party out of powerthan omd to produce gloomier outlooks so the party out of power likes those numbers better. during bill clinton's presidency the choice of these was the essential issue in the budget impasse that led to the government shutdowns of 1995, and 1996 with republicans demanding the use of cbo

numbers. given how important budget issues are for any campaign to take control of the national government or reaching control of the national government the all party has powerful incentives not to come to the table to negotiate. it may be that the only way the issues can be addressed effectively is issues of divided government. reflecting over recent decades it appears most of the significant budget agreement that lowered federal deficits were adopted when one party controlled office and the other control the presidency. this includes the 1990 budget and the budget agreements during the clinton years that contributed to the surplus in the second term. the 93 social security reform that simultaneously raised trust fund revenues and lower long-term cost of the program and also occurred under conditions of -- divided government. only way the american government functions. given the large number